SAS v France in Context: the margin of appreciation doctrine and protection of minorities
In SAS v France the Grand Chamber of the European Court of Human Rights (ECtHR) found that a French law prohibiting the concealment of the face in public places did not violate the European Convention on Human Rights (ECHR). The findings in the case have been detailed elsewhere. This post asks how the judgment in SAS fits with the Court’s other Article 9 case law and highlights some of the issues raised by the judgment.
It might have been supposed that the ECtHR would view the October 2010 law as violating the Convention, given its previous ruling in Arslan v Turkey, in which a violation of Article 9 arose from the conviction of 127 members of a religious group for wearing religious dress in the streets. The Court emphasised the distinction between such restrictions operating in public areas open to all and restrictions in schools or other public establishments where religious neutrality was key, suggesting that a blanket ban in all public spaces would likely violate Article 9. Moreover, as the ECtHR itself acknowledges in SAS, ‘a large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate’ (para 147). However, it nonetheless finds the ban proportionate and goes to some lengths to distinguish Arslan. It stresses that, though both cases involve a ban on wearing religious dress in public places, SAS ‘differs significantly … [as] the full-face Islamic veil has the particularity of entirely concealing the face…” (para 136). This appears a relatively thin basis on which to reconcile its findings with the earlier case. It also appears at odds with the Chamber’s findings in Eweida and others that a far narrower rule, prohibiting the wearing of religious symbols by British Airways employees, was in violation of Article 9.
The Grand Chamber highlights that the law did not expressly target religious dress (para 151). Such emphasis on ostensible neutrality is unconvincing given the legislative history of the ban and its impact on a highly specific class of persons; the Court notes its concern at Islamophobic comments in debates on the law (paras 148-149). Nonetheless, the Court attributes significant weight to the fact that the law was ‘not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face’ (para 151). This, in the Grand Chamber’s view, is sufficient to distinguish the 2010 law from the restrictions in Arslan. However, it is obvious that the law is aimed at targeting religious persons and one religious group in particular.
There are certainly positives to take away from the judgment. In line with the Court’s more recent case law, it is careful to acknowledge the harm that restrictions on dress can cause to religious individuals, in contrast with much of its previous case law on restrictions on the headscarf (paras 139, 146, and 152). The Grand Chamber makes an effort to recognise the divergent meanings attributable to religious dress, abandoning the one-dimensional approach in some of its previous case law on Muslim dress (such as Sahin v Turkey and Dahlab v Switzerland). As Lucy Vickers’ post highlights, the Court at times actually makes a strong case against the ban, rejecting justifications of a blanket ban by reference to public safety, gender equality, or human dignity.
It is increasingly difficult to reconcile the varying elements of the Court’s Article 9 case law because of the degree to which deference to states’ choices of church-state models plays a role. In SAS the Court acknowledges the risk of abuse resulting from the flexibility of the aim of ‘living together’. However, this statement of intent is contradicted by its subsequent acceptance that a wide margin of appreciation should apply (para 155). Adopting a hands-off approach because the boundaries of religious freedom vary across Convention states or out of deference to the democratic process contradicts the necessarily counter-majoritarian nature of human rights, particularly where protection of minorities is concerned. As the dissenting judges (Nussberger and Jäderblom) argue, ‘it still remains the task of the Court to protect small minorities against disproportionate interferences’ (para 20). The question remains how the judgments in Eweida and others, Arslan, and SAS can be reconciled so as to identify the minimum content of Article 9’s protection of religious manifestations.